Editorial: A watershed case on U.S. spying power?

For years, the federal government has managed to avoid judicial review of a controversial part of its warrantless wiretapping program.
Indeed, it has been all but impossible to challenge the constitutionality of this particular brand of eavesdropping because those targeted couldn’t show their communications had been seized.
Now, it seems that the dam is poised to burst in the case of a terrorism suspect from Aurora, Colo., who has been informed that material gleaned via a controversial weapon in the administration’s spy toolbox may be used against him in a criminal case.
It is the first time such a notification has been made, and we’re glad it was.
It means that the broad surveillance authority Congress gave the administration in a 2008 expansion of the Foreign Intelligence Surveillance Act and the manner in which this power is being used may finally receive much-needed judicial review.
Call us skeptical, but it seems unlikely this is the only criminal case in which material collected under Section 702 of FISA has been used to build criminal cases.
In fact, as The New York Times reported, there has been significant disagreement within the Justice Department as to when such notifications were necessary.
The case against Aurora’s Jamshid Muhtorov offers a chance to explore the notification issue and the legality of the eavesdropping.
The Uzbek refugee is accused of providing material support to a terrorist organization, the Islamic Jihad Union (IJU), and was allegedly going overseas to join militants when arrested in early 2012.
The allegations against Muhtorov, a truck driver and father of two, have been outlined in federal court documents in broad strokes.
Most of the criminal complaint against him quotes from emails and telephone conversations in which Muhtorov allegedly planned to give money to the IJU and expressed a willingness to help with “the wedding,” which the FBI asserts was code for a terrorist attack.
Exactly how warrantless wiretaping material comes to play is not explained, but a brief notice filed Oct. 25 in the Muhtorov case says the government intends to use evidence gathered under Section 702 of FISA.
The section generally allows the monitoring of online communications without an individualized warrant so long as the target is a foreigner outside the U.S.
But there are many loopholes in the law and sections that are subject to interpretation, not the least of which is the definition of “target” and how information that is incidentally swept up can be used.
Another gray area involves the legal limits in using information from warrantless wiretapping to develop other evidence in criminal cases.
The disclosure in the Muhtorov case sets up a challenge as to whether Fourth Amendment protections against unreasonable search and seizure were violated.
It’s possible the issues will make it to the Supreme Court. We hope so. Important questions remain about whether the administration’s warrantless snooping passes constitutional muster. We very much doubt that all of it does.